Spanish judge to ask U.S. if it will actually be investigating 6 senior Bush officials over torture

MADRID -- A Spanish judge said Tuesday he will ask the United States if it plans a probe of six senior Bush administration officials accused of creating a legal framework for torture of terror suspects, before deciding whether to open his own investigation.

Judge Eloy Velasco said Spain can act only if the United States has not conducted a torture investigation of its own and does not plan one.

Velasco is handling a complaint filed by human rights lawyers under Spain's principle of universal justice, which holds that grave crimes like terrorism, genocide or torture can be prosecuted here even if alleged to have been committed abroad.

"As we are in a preliminary phase, it seems more in line with our complex system of universal prosecution" to ask the Obama administration what its plans are for the six Bush administration officials named in the complaint, including former U.S. attorney general Alberto Gonzales, Velasco wrote in a five-page ruling.

Court prosecutors and the Spanish attorney general recommended in a nonbinding writ last month against launching such a probe here, saying such a procedure is up to the United States. But Velasco -- who was assigned the case when original judge Baltasar Garzon handed it back to the court -- has not formally dropped it.

Garzon has said documents declassified by the new U.S. government suggest the practice was systematic and ordered at high levels of the U.S. government.

Spanish prosecutors said on April 17 that any such probe should be carried out by the U.S. and recommended against it being launched in Spain. Their opinion has been endorsed by Spain's Attorney General Candido Conde-Pumpido. Garzon originally had that case, but ultimately it was transferred to another judge, who has yet to decide whether to investigate.

Garzon has also opening a separate, broader probe that does not name any specific suspects but targets "possible material authors" of torture, accomplices and those who gave torture orders.

Investigating 2002 Gaza bombing

In other legal developments, another Spanish judge said Monday he will keep investigating seven current or former Israeli officials over a 2002 air force bombing in Gaza that killed a suspected Hamas militant and 14 civilians.

Prosecutors last month urged Judge Fernando Andreu of Spain's National Court to suspend the inquiry on the grounds Israel was still investigating the attack. But Andreu rejected the request on Monday, saying he has found no evidence of such an investigation in Israel.

Israel's Foreign Ministry called the decision "ridiculous" and groundless. A Palestinian human rights group hailed it as a "great victory."

Andreu first agreed to open the case in January at the request of Palestinian relatives of victims of the attack. Nine children were among the dead.

Andreu said the 2002 bombing in densely populated Gaza City might constitute a crime against humanity. That attack with a one-ton bomb dropped from an Israeli F-16 targeted and killed alleged Hamas member Salah Shehadeh along with 14 other people. Israel has defended the attack as a legitimate strike against a terrorist.

On Monday, the Spanish judge wrote that Israel's military conducted an internal investigation but Israeli military and civilian prosecutors declined to open proceedings of their own. He said for this reason Spain has jurisdiction to keep investigating.

"In Israel there has not been, nor is there now under way, any legal proceedings aimed at investigating" the Gaza bombing, the judge wrote.

Andreu's initial decision to investigate infuriated the Israeli government. Spanish Foreign Minister Miguel Angel Moratinos said in response that Spain planned to modify its law to narrow the scope of universal jurisdiction cases to those with a clear link to Spain.

But no reform to this effect has yet to make it to the Spanish parliament for debate or a vote.

The chief justice of the Spanish Supreme Court, Carlos Divar, said Monday an amendment to this country's universal justice law is necessary because "we cannot become the world's judicial gendarme." Divar is also the chairman of a watchdog body that oversees the Spanish court system.

"This whole procedure in Spain is ridiculous," Israeli Foreign Ministry spokesman Yigal Palmor said. "They have no basis for this procedure because there is no evidence to support war crimes and it would credit the Spanish justice system if the procedure would end promptly."

Israeli Defense Minister Ehud Barak said he would speak to Spain's defense and foreign ministers "and if need be the Spanish prime minister to act in order to remove the evil decree."

Barak added: "There isn't a more ethical army than the Israel Defense Forces. I have no doubt that those who acted then to hit Shehadeh acted with a clear head and an eye locked on one target only -- to protect Israeli civilians."

Raji Sourani, director of the Palestinian Center for Human Rights, located in the Gaza Strip, said, "We welcome this decision as the first step toward justice for the survivors of a massive extra-judicial execution operation perpetrated by the Israeli Occupation Forces ... This is a great victory."

The seven being investigated include Dan Halutz, who commanded Israel's air force at the time of the attack, and Binyamin Ben-Eliezer, then defense minister and now the minister of trade.

The five others are Doron Almog, who at the time was commander of the air force in Gaza; Giora Eiland, then Israel's National Security Adviser; Michael Herzog, who was with the Defense Ministry; Moshe Ya'alon, then chief of staff of the Israeli military; and Abraham Dichter, then director of the Shin Bet internal security agency, or General Security Service.

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